Tribunal decisions

The decision

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of June 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE ANZANI

Between

AC
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E. MacKay, McGlashan MacKay Solicitors
For the Respondent: Mr K. Ojo, Senior Home Office Presenting Officer

Heard at Field House on 13 May 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. The Appellant appeals against the decision of the First-tier Tribunal, promulgated on 22 October 2025, which dismissed his appeal against the Respondent’s decision of 23 August 2024 refusing his protection claim.
Background
2. The Appellant is a national of Sri Lanka, born on 12 January 1994. He claimed asylum in the United Kingdom on 21 February 2023.
3. The Appellant’s claim was advanced on the basis that he would be at risk on return to Sri Lanka by reason of an imputed political opinion. He claimed that his brother had worked for the pro-Tamil newspaper Udayan, that his brother had come to the adverse attention of the Sri Lankan authorities and had fled Sri Lanka, and that the Appellant had subsequently been targeted by the authorities because of his brother’s profile and perceived LTTE links. He also relied upon sur place activities in the United Kingdom, including attendance at demonstrations and involvement with the Transnational Government of Tamil Eelam (“TGTE”).
4. The Respondent refused the claim on 23 August 2024. The Respondent accepted the Appellant’s identity and nationality, but did not accept the material factual basis of his claim, including that his brother had worked for Udayan newspaper, that his brother had any involvement with the LTTE, or that the Appellant was of adverse interest to the Sri Lankan authorities. The Respondent also did not accept that the Appellant’s sur place activities in the United Kingdom placed him at real risk on return.
Decision of the First-tier Tribunal
5. The appeal was heard before the First-tier Tribunal sitting at Glasgow on 17 October 2025. The Appellant attended and gave oral evidence with the assistance of a Tamil interpreter. He was represented by Mr Heeps of McGlashan MacKay Solicitors.
6. The Judge recorded that the Appellant claimed to have left Sri Lanka in February 2022, travelled to India, then to Sweden, then to France, and finally to the United Kingdom by small boat. The Judge also recorded that the Appellant’s brother had been issued with a French residence permit which described him as a Sri Lankan refugee.
7. The Judge found that the Appellant had not given a dependable account. The Judge placed adverse weight on a number of matters, including what he considered to be the Appellant’s failure to claim asylum in France, the absence of the underlying French asylum decision relating to the Appellant’s brother, inconsistencies or changes in the evidence about whether the Appellant’s brother had been a journalist or had worked in distribution and sales for the newspaper, the delay between the brother’s departure from Sri Lanka in 2013 and the authorities’ alleged interest in the Appellant from 2019, and the Judge’s assessment of the supporting documentary evidence.
8. The Judge also rejected the Appellant’s sur place claim. Although the Judge referred to KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC), he found that the Appellant’s activities were low-level and very recent, and that they did not place him at real risk on return.
9. The Judge dismissed the appeal on all grounds.
Grounds of appeal
10. The Appellant sought permission to appeal to the Upper Tribunal on three grounds, which can be summarised as follows:
(i) Ground 1 contended that the Judge failed to have regard to relevant evidence when assessing the Appellant’s credibility. In particular, it was argued that the Judge erred in treating the Appellant’s failure to claim asylum in France as “inexplicable”, when the Appellant’s witness statement stated that he had claimed asylum in France but left because he feared being returned to Sweden. It was also argued that the Judge’s adverse finding based on the delay between the brother’s departure in 2013 and the authorities’ alleged interest in the Appellant from 2019 failed to engage with the Appellant’s evidence and the submissions made in the Appellant’s skeleton argument.
(ii) Ground 2 contended that the Judge failed properly to engage with the evidence relating to the Appellant’s brother’s asylum claim in France. It was argued that the Judge had before him the brother’s witness statement, the brother’s French residence card identifying him as a Sri Lankan refugee, and documentary evidence relating to the brother’s work for the Udayan newspaper. The Appellant submitted that the Judge failed adequately to consider that evidence when assessing whether the brother’s claim supported the Appellant’s account.
(iii) Ground 3 contended that the Judge failed properly to apply the country guidance in KK and RS. It was argued that the Judge wrongly treated the question as whether the Appellant was a “low-level” supporter, rather than whether he would be perceived by the Sri Lankan authorities as having a significant role in post-conflict Tamil separatism. It was further argued that the Judge failed to consider properly the temporary travel document process and the pinch-points at which the Appellant might come to the attention of the Sri Lankan authorities.
11. Permission to appeal was granted by First-tier Tribunal Judge Seelhoff on 30 December 2025. Permission was granted on all grounds.
Decision and reasons
12. I have considered the First-tier Tribunal decision, the documentation that was before it, the grounds of appeal, and the submissions made at the hearing before reaching my decision.
13. The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2010] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19. I have kept these considerations in mind when coming to my decision.
14. I deal first with Ground 1. I am satisfied that the first part of Ground 1 is made out. At paragraph 16 of the decision, the Judge treated the Appellant’s failure to claim asylum in France as “inexplicable”. That formed part of the Judge’s adverse assessment of the Appellant’s credibility. However, the Appellant’s evidence was not simply that he had failed to claim asylum in France. In his witness statement, he stated that he did claim asylum in France, but left France before the claim was fully determined because he feared being returned to Sweden and, ultimately, to Sri Lanka.
15. The Respondent submits, and I accept, that there was other material before the Judge which was capable of causing concern about this aspect of the Appellant’s evidence. In particular, Mr Ojo pointed out that the Appellant had said at screening that he had not claimed asylum in any country other than the United Kingdom, and that the screening interview amendments did not refer to the later assertion that he had claimed asylum in France. Those matters were plainly relevant to credibility and may well have supported an adverse finding.
16. However, that is not the way in which the Judge reasoned the matter. The Judge did not identify an inconsistency between the screening interview and the witness statement, nor did he make a finding that the Appellant’s later evidence about claiming asylum in France was untrue. Instead, the Judge proceeded on the basis that the Appellant had not claimed asylum in France at all and found that omission to be “inexplicable”.
17. That distinction matters. The Respondent’s refusal letter relied on section 8(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 by reference to the Appellant’s failure to claim asylum in Sweden. The Respondent’s case was that Sweden was a safe country and that the Appellant’s failure to claim asylum there, despite having the opportunity to do so, damaged his credibility. The refusal letter did not put the Appellant on notice that he was also said to have failed to claim asylum in France, nor that such a failure would be relied upon as a separate adverse credibility point.
18. It was, of course, open to the Judge to consider matters arising from the evidence even if they had not been relied upon in precisely the same way in the refusal letter. However, where a point is relied upon as materially damaging to credibility, procedural fairness and adequate reasoning require the Judge to engage with the evidence actually given on that point. In this case, the Appellant’s witness statement gave an explanation. He said that he had claimed asylum in France, but feared removal to Sweden. If the Judge rejected that evidence, it was necessary to say so and to explain why.
19. I accept that the Judge may ultimately have been entitled to reject the Appellant’s explanation, particularly given the inconsistency with the screening interview. But that was a finding which required reasoning. The omission was material because the perceived failure to claim asylum in France was one of the matters relied upon by the Judge when assessing the Appellant’s overall credibility. I am therefore satisfied that this aspect of Ground 1 discloses a material error of law.
20. I do not, however, accept the second part of Ground 1. The Judge was entitled to consider the delay between the Appellant’s brother’s departure from Sri Lanka in 2013 and the Sri Lankan authorities’ alleged adverse interest in the Appellant from 2019. The Judge recorded that the Appellant was an adult male in 2013 and considered him an obvious candidate for questioning if his brother’s flight had genuinely caused adverse interest at that time. The Judge was entitled to regard the delay as a credibility concern. The fact that the Appellant said he did not know why he was targeted only later, and that Sri Lanka was said to be authoritarian in nature, did not require the Judge to accept that part of the account. This aspect of the ground is, in substance, a disagreement with the weight the Judge gave to the evidence. I do not find that it discloses a material error of law.
21. I next consider Ground 2. I do not accept that this ground is made out. The Judge was clearly aware that the Appellant relied on his brother’s claimed asylum history in France. The Judge recorded that the brother had been issued with a residence permit card which described him as a Sri Lankan refugee, and also referred to the brother’s witness statement. The Judge was therefore not unaware of the broad evidential basis of this part of the claim.
22. The Judge was entitled to be concerned about the absence of the underlying French asylum decision. That was a central issue because the Appellant’s claim depended, in part, on the proposition that his brother had been recognised as a refugee in France for reasons materially connected with the Appellant’s own claimed risk. The Respondent’s Review had put the Appellant on notice that the material already provided, relating to the French proceedings, raised questions. The Judge noted the gap between the French court letter of 24 July 2015 and the later residence permit issued in 2016, and that the Judge questioned whether the brother had made a successful appeal or had been afforded leave in some other way.
23. The brother’s witness statement did not adequately address those concerns. It did not provide the missing French decision, explain the legal basis on which the brother had been granted status, or resolve the questions raised by the French court letter. The letter itself did not confirm that the brother had been granted refugee status. Rather, it appeared to refer to a decision and to a right of appeal. The residence permit stated the brother’s nationality as “Sri Lankan refugee”, but it did not disclose the basis of his claim, whether refugee status had in fact been granted under the Refugee Convention, or the factual basis on which any protection status had been conferred.
24. In those circumstances, the Judge was entitled to find that the absence of the French decision left an important evidential gap. The Judge was also entitled to attach limited weight to the evidence relied upon in support of the brother’s claim where the documents did not establish the basis on which the brother obtained status in France. Although the Judge might have said more about the brother’s witness statement, I am not satisfied that any failure to do so was material. The statement did not answer the concerns which had been raised and which the Judge was entitled to regard as significant. Ground 2 is therefore not made out.
25. I turn to Ground 3. I am satisfied that this ground is made out. The Judge correctly identified KK and RS as the relevant country guidance and set out a number of the factors identified in that case. The Judge recorded that, before return on a temporary travel document, the Sri Lankan authorities are reasonably likely to have obtained information about matters including association with diaspora organisations, attendance at demonstrations, the nature of involvement in those events, whether the individual held flags or banners displaying the LTTE emblem, organisational or promotional roles, attendance at commemorative events, fundraising, online presence, lobbying and petitions.
26. The Judge also recorded that the assessment is fact-specific and must be informed by an indicator-based approach, including the nature of the diaspora organisation, the type, extent and duration of activities, any relevant history in Sri Lanka, and any relevant familial connections. That was the correct framework.
27. The difficulty lies in the application of that framework. Having set out the relevant guidance, the Judge concluded at paragraph 35 that the Appellant was not at risk because his activities were “low level and very recent”. That conclusion was insufficiently reasoned.
28. The question was not simply whether the Appellant’s activities could be described as “low level”. The relevant question under KK and RS was whether, applying the indicator-based approach, the Appellant would be perceived by the Sri Lankan authorities as having a significant role in post-conflict Tamil separatism. A person does not need to hold a formal position or be “high profile” in an ordinary sense before risk may arise. The assessment is fact-sensitive and depends on how the Sri Lankan authorities are reasonably likely to perceive the individual’s activities.
29. The Appellant relied on photographs of his attendance at demonstrations, including material said to show him holding LTTE flags or banners and attending demonstrations outside the Sri Lankan High Commission. He also relied on a TGTE membership card and letter confirming registration as an activist. The First-tier Tribunal decision refers to photographs and to the TGTE letter, but it does not adequately analyse the content of that evidence by reference to the indicators in KK and RS. In particular, the Judge did not adequately assess the significance of the nature of the organisation, the use of LTTE imagery, the location of demonstrations or the extent to which photographs might be available to the Sri Lankan authorities.
30. Nor did the Judge adequately address the temporary travel document process. The Appellant’s case was that, as a failed asylum seeker without a valid passport, he would be required to engage with the Sri Lankan authorities before return. The country guidance makes clear that the TTD process is an important part of the risk assessment because it is a point at which information about diaspora activity is reasonably likely to be obtained by the Sri Lankan authorities. Although the Judge reproduced some of the relevant guidance at paragraph 33, he did not then apply it to the Appellant’s actual evidence in any meaningful way.
31. Mr Ojo submitted that the Judge was entitled to find the Appellant’s sur place activity opportunistic and recent. I accept that those were relevant matters. The Judge was also entitled to take into account the adverse credibility findings made in relation to the Appellant’s claimed history in Sri Lanka. However, opportunism and recent activity are not, of themselves, determinative. The question remains whether the Sri Lankan authorities would perceive the Appellant as having a significant role in Tamil separatism on the totality of the evidence. The Judge’s conclusion does not demonstrate that this question was properly answered.
32. I am therefore satisfied that the Judge materially erred in the assessment of the sur place claim. The error is material because the sur place claim was an independent basis on which the Appellant claimed to be at risk on return. Had the Judge properly applied the country guidance to the evidence of the Appellant’s activities, including the TGTE evidence, the photographs, the alleged use of LTTE flags or banners, attendance outside the Sri Lankan High Commission, and the TTD process, the outcome could have been different. The error is not that the Judge reached a conclusion adverse to the Appellant on the sur place claim, but that the decision does not demonstrate a sufficient application of the country guidance to the particular evidence relied upon, or provide adequate reasons for why that evidence did not meet the relevant risk threshold.
33. In light of that conclusion, and the error identified in relation to the first part of Ground 1, the decision of the First-tier Tribunal cannot safely stand. I do not set aside the decision on the basis of Ground 2 or the second part of Ground 1. However, the errors I have identified are material to the overall assessment of risk on return and to the credibility assessment insofar as the Judge relied on the Appellant’s alleged failure to claim asylum in France as an adverse credibility point.
Conclusion
34. I find that the decision of the First-tier Tribunal involved the making of material errors of law. The decision is set aside in its entirety. Having regard to the guidance given in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and given the nature and extent of fact finding required, the appropriate course is for the appeal to be remitted to the First-tier Tribunal for a hearing de novo, with no findings preserved.
Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law.
The decision of the First-tier Tribunal is set aside in its entirety, with no findings preserved.
The appeal is remitted to the First-tier Tribunal to be heard de novo before a different judge.

S. Anzani

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 May 2026